I organized several moot courts for General Abbott. One that I remember particularly well was in Washington, D.C. Around the table sat a murderer’s row of Supreme Court advocates. Paul Clement, the U.S. SG and one of the most experienced advocates in the country, was there. Also at the table was Jay Sekulow, recently President Donald Trump’s lawyer during the impeachment trial and, before that, one of the most highly regarded Supreme Court religious-liberty advocates in the country. Several other very experienced Supreme Court lawyers joined us, as well.
The moot lasted over an hour. Everyone had withering questions for Abbott—so much so that I was nervous that my boss would be annoyed at me for having arranged such a bare-knuckles moot. Fortunately, as a consummate professional, he was thankful that the rigorous questioning had ensured he was fully prepared for the main event.
The argument came on March 2, Texas Independence Day. The night before, I advised General Abbott: if the argument started going poorly and it seemed we might not prevail, he could simply raise his fist in the air and say, “Remember the Alamo!”
That morning began with a brief moment of humor. As Abbott and I were sitting at counsel’s table, Paul Clement was at the table next to us. Moments before the Supreme Court justices were to ascend the dais at 10:00 a.m. sharp, Paul leaned over to Abbott and me and whispered loudly, “We figured out a theory to win this case.” Abbott and I were, of course, quite interested. Paul continued, “We’re going to argue that the Ten Commandments… are international law.” The joking reference, of course, was to the rising pattern of some Supreme Court justices—especially those on the left—relying on international law, wrongly in most instances, to help adjudicate constitutional cases.
General Abbott gave a very strong argument—so much so that it prompted something that rarely occurs. He was praised from the bench by the justices themselves. My former boss Chief Justice Rehnquist was gravely sick at the time, and he would live for only a few more months. He was not on the bench to preside, so the argument was presided over instead by Senior Associate Justice John Paul Stevens. At the close of General Abbott’s oral argument, Justice Stevens thanked General Abbott for demonstrating that one needn’t be at the podium to give an excellent argument. That reference was, of course, to the fact that Greg Abbott is confined to a wheelchair and has been for three decades, ever since he was tragically injured by a falling tree-branch while jogging and was paralyzed from the waist down.
The decision of the Court in Van Orden v. Perry came down on the last day of the term, and it was the last decision the Court issued that year. By a vote of 5–4, Texas prevailed.
The plurality opinion was authored by Chief Justice Rehnquist. There was a deep sense of justice and completeness in Rehnquist’s authoring the opinion. As an associate justice, Rehnquist had been one of the original dissenters in Stone v. Graham, a 1980 case in which the Supreme Court struck down the display of Ten Commandments in public schools.
And Van Orden, upholding the display of the Ten Commandments, would be the last judicial opinion William Hubbs Rehnquist ever wrote. In his plurality opinion, the Chief Justice described the Supreme Court’s Establishment Clause jurisprudence as “Janus-like,” facing two directions at once. One line of Supreme Court cases views the public acknowledgement of faith and God with deep skepticism and sees the courts as a tool to scrub the public square of any acknowledgment of God Almighty. The other line of cases, many of which were authored by Chief Justice Rehnquist, recognizes that acknowledging faith, God, and our Judeo-Christian heritage is entirely consistent with religious liberty—and, indeed, protects every individual’s freedom of conscience.
Liberal judges have long viewed the Free Exercise Clause and the Establishment Clause as in conflict with one another. In so doing, these black-robed activists have been eager to read public displays of religion as infringing upon the Constitution, and the Establishment Clause as a Lysol disinfectant for removing all faith from the public square.
There was an irony to the end result in Van Orden. I had told General Abbott about our extensive efforts to craft a litigation strategy targeted precisely to earn Justice O’Connor’s vote. As it turned out, that plan was a dismal failure. Justice O’Connor voted to strike down the Ten Commandments monument in Texas. Every argument that I had so carefully crafted to appeal to O’Connor missed the mark, but, as it so happened, they persuaded Justice Stephen Breyer instead.
Texas prevailed in Van Orden because Justice Breyer, a Bill Clinton appointee and a reliably liberal jurist, made the decision to split the baby in half. In Van Orden, Texas won. But in McCreary, the accompanying Kentucky case whose opinion came down on the very same day, Kentucky lost.
As with so many Establishment Clause cases, the precise facts and context mattered (which is why we spent so much time and effort correcting petitioner’s misrepresentations of the facts in Van Orden). And, in the Kentucky case, local politicians had made a number of foolish and ill-advised statements when their Ten Commandments display was erected that the Court deemed impermissible.
So in the end, our strategy of acquiescing to the Supreme Court on the writ of certiorari was vindicated. Had the Supreme Court taken only the Kentucky case, the result that day would have been a 5–4 loss for public displays of Ten Commandments monuments. That precedent, in turn, could have resulted in our monument and the hundreds of others across the country’s being torn down.
But, instead, the Van Orden precedent proved the far more important of the two; the Texas monument still stands, as do other Ten Commandments monuments nationwide.
There is another note of irony to the tale of Van Orden v. Perry. As we stood in the Supreme Court courtroom arguing whether or not it was permissible to
